IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VISHAL MISHRA th ON THE 18 OF NOVEMBER, 2024 MISC. PETITION No. 1419 of 2017 CHINTA AND OTHERS Versus BISHWANATH SINGH AND OTHERS Appearance:

Mr. J.L. Soni - Advocate for petitioners.

Ms. Sanjana Sahni - Advocate for respondents No.1 and 2.

Mr. Prabhanshu Shukla - Govt. Advocate for respondent No.4/State.

ORDER This petition has been filed challenging the order dated 08.11.2017 (Annexure P/5) passed by the First Civil Judge Class II Rajnagar District Chhatarpur (M.P.) in Civil Suit No.11A of 2017 whereby the application filed by the respondents No.1 and 2/plaintiffs under Order 23 Rule 1 of CPC to withdraw the suit with liberty to file a fresh suit, was allowed.

2. The facts of the case, in substance, are that the plaintiffs-respondents No.1 and 2 filed a civil suit seeking decree of declaration of title to the property in question and by filing an application under Order 6 Rule 17 of CPC for amendment in the plaint, they claimed declaration of acquisition of the land by the Land Acquisition Officer, Rajnagar District Chhatarpur as null and void. The petitioners-defendants No.2 and 3 filed written statement. During pendency of the suit, petitioners received compensation as per award of Rs.1,43,84,497.80 in respect of the land acquired by the respondent No.4 Signature Not Verified Signed by: VINOD for NTPC. The evidence of the plaintiffs was recorded and the case was fixed for evidence of the defendants. In view of the averments made in the written statement, the plaintiffs i.e. respondents No.1 and 2 herein filed an application under Order 23 Rule 1 of CPC seeking permission to withdraw the suit with liberty to file afresh. By the impugned order dated 08.11.2017, the learned trial Court has allowed the application of the plaintiffs filed under Order 23 Rule 1 of CPC and permission was granted to withdraw the suit with liberty to institute a fresh suit before appropriate court.

3. It is argued that the trial Court has failed to consider the provisions of Order 23 of Rule 1 of CPC and has erred in allowing the application of the plaintiffs. The land in question was acquired by the respondent No.4 for NTPC and the NTPC has been in possession of the suit property since 1992 and this fact is known to the plaintiffs/respondents No.1 and 2. The compensation in lieu of land has already been paid to the petitioners, therefore, the suit filed by the plaintiffs is not maintainable. It is submitted that the trial Court ought not to have been permitted the plaintiffs to withdraw the suit with liberty to file afresh on the same cause of action.

Hence, prayer is made to set aside the impugned order.

4. The counsels appearing for the respondents No.1 and 2/plaintiffs as well as for State have vehemently opposed the submissions and supported the impugned order. It is argued that neither any vested right is created in favour of the defendants nor any prejudice is caused to the defendants because of withdrawal of the suit with a liberty to file a fresh suit under Order 23 Rule 1 read with Rule 3 of CPC. It is always open for the Signature Not Verified Signed by: VINOD defendants to object to the fresh suit by filing a written statement or raising a question on maintainability. It is submitted that Order 23 Rule 1 clearly indicates that the suit can be withdrawn any time after the institution and Rule 3 thereof provides that if the court is satisfied that the suit must fail by reason of some formal defects, it may on such terms as it thinks fit, grant the plaintiff permission to withdraw from the said suit and institute a fresh suit in respect of the subject matter of such suit or such part of the claim. Such contentions whether the plaintiff had improved his cause of action or changed the subject matter of the suit are well within the capacity of the defendant to be raised in the written statement to be filed before the concerning court. Therefore, there is no error in the impug